IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
MONDAY, THE 25TH DAY OF FEBRUARY 2013/6TH PHALGUNA 1934
WP(C).No. 26073 of 2012 (H)
---------------------------
PETITIONER(S):
--------------------------
R. RATEESH KUMAR, AGED 44 YEARS,
S/O. RAMAKRISHNAN, ADVOCATE, PALAKKAD,
TEMPRARILY RESIDING AT NELLIKKATHODY HOUSE,
KADALAKURISSI, KANNADI, PALAKKAD-678 701.
BY SRI.P.VIJAYA BHANU, SENIOR ADVOACATE.
ADVS. SMT.M.M.DEEPA,
SRI.VIPIN NARAYAN.
RESPONDENT(S):
----------------------------
1. STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2. THE SECRETARY TO DEPARTMENT OF HOME,
GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
3. THE DIRECTOR GENERAL OF PROSECUTION,
HIGH COURT OF KERALA, KOCHI-682 031.
4. SRI. JOHN JOHN,
ADVOCATE, SALAMATH NAGAR,
NEAR CIVIL STATION, PALAKKAD-678 001.
* ADDL. R5 IMPLEADED
5. N. MINI, AGED 42 YEARS,
W/O.LATE E.R. NARAYANAN, EDAKKAD HOUSE,
KUZHALANNAM, PALAKKAD DISTRICT.
* ADDL. R5 IS IMPLEADED AS PER ORDER DATED 25/02/2013
IN I.A. NO.641/2013.
R1 TO R3 BY GOVT. PLEADER MR.NOUSHAD THOTTATHIL.
R4 BY SRI.RENJITH THAMPAN, SENIOR ADVOCATE.
ADV. SMT.P.R.REENA.
ADDL. R5 BY ADVS. SRI.V.M.KRISHNAKUMAR,
SRI.M.V.ANANDAN.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 07-02-2013, THE COURT ON 25-02-2013 DELIVERED THE
FOLLOWING:
rs.
WP(C).No. 26073 of 2012 (H)
APPENDIX
PETITIONER'S EXHIBITS:-
EXT.P1 COPY OF THE ORDER DATED 23/09/2010 ISSUED BY THE
GOVERNMENT.
EXT.P2 COPY OF THE LETTER DATED 02/06/2010 ADDRESSED TO THE
GOVERNMENT BY R3.
EXT.P3 COPY OF THE PETITION DATED 21/11/2011 FILED IN
CRL.MP. NO.3534/2011 ON THE FILE OF THE 2ND ADDITIONAL
SESSIONS COURT, PALAKKAD.
EXT.P4 COPY OF THE MEMO DATED 19/10/2012 FILED IN SC.490/2008.
EXT.P5 COPY OF THE ORDER NO.G.O.(RT) 311/2011/HOME DATED 30/01/2011.
EXT.P5A COPY OF THE NOTIFICATION DATED 30/01/2011 ISSUED BY
THE GOVERNMENT.
EXT.P6 COPY OF THE CIRCULAR DATED 25/03/1992 ISSUED BY THE
GOVERNMENT.
EXT.P7 COPY OF THE COMMUNICATION DATED 07/07/2012 OF THE
GOVERNMENT.
EXT.P8 COPY OF THE REPLY GIVEN BY THE STATE PUBLIC INFORMATION
OFFICER & UNDER SECRETARY DATED 22/02/2012.
RESPONDENT'S EXHIBITS:-
EXT.R5A COPY OF THE DECISION REPORTED IN 1994 CRL.L.J.2780 (KER.)
//TRUE COPY//
P.S. TO JUDGE
rs.
A.M. SHAFFIQUE, J
---------------------------------------
W.P. (C) NO. 26073 OF 2012
----------------------------------------
Dated this the 25th day of February, 2013
JUDGMENT

The petitioner, an accused in SC. No. 490 of 2009 pending
before the Fast Track Court - III, Palakkad challenges Ext. P5 and
P5(a) and also seeks a Writ of Qua-warranto to remove the 4th
respondent from the post of Special Public Prosecutor. Ext. P5 is
an order issued by the Government on 30.01.2011 appointing the
4th respondent as Special Public Prosecutor for the conduct of
prosecution in Crime No. 134/2007 of Kuzhalmannam Police
Station, which is pending as SC No. 490 of 2009 before the Fast
Track Court - III, Palakkad. Ext. P5(a) is the notification issued by
the Government in that regard appointing the 4th respondent as
Special Public Prosecutor.

2. The main contention urged by the petitioner is that
initially when there was a request made by the wife of the
deceased to appoint a Special Prosecutor in terms with Sec. 24
(8) of the Criminal Procedure Code (hereinafter referred to as
'Code'), it was rejected by the Government as per Ext. P1 dated
23.09.2010 having come to the conclusion that there is no special
W.P. (C) NO. 26073 OF 2012
2
circumstances for engaging a Special Public Prosecutor and that
the Government Pleader at station was competent enough to
conduct the prosecution. Ext.P1 referred to an opinion of the
Director General of Prosecution which is also produced as Ext.
P2.

3. The contention urged is that once the request for
appointing Special Public Prosecutor had been rejected there is
no reason to appoint a Special Public Prosecutor to the choice of
the wife of the deceased. A reference is made to Ext. P5 which
refers to a representation dated 06.09.2010 of Smt. N. Mini wife
of deceased which according to the petitioner is not in existence,
as no such representation and no such report was available in
the file, as per the information received under the Right to
Information Act. The petitioner refers to Ext. P6 Circular dated
25.03.1992 issued by the Government in the matter relating to
appointment of Special Public Prosecutors which inter alia
indicates that such appointments shall be made only under very
exceptional circumstances, where the cases involved are highly
sensational or have extensive public interest.
W.P. (C) NO. 26073 OF 2012
3

4. The additional 5th respondent in the affidavit filed in
support of the impleading petition contended that her deceased
husband was a prominent figure and a business man and he was
brutally murdered. The 1st accused is an advocate and 2nd
accused is his father. It is also mentioned that a close friend of
the 1st accused is the Additional Government Pleader at Palakkad
and that despite the fact that the accused were involved in such
a brutal murder they were permitted to obtain necessary bail
and they were not even arrested and confined in prison for even
a day. According to the additional 5th respondent the accused are
highly influential and merely because the Government had
earlier rejected her request for appointing a Special Public
Prosecutor, it does not mean that a different opinion could be
expressed in the matter.

5. Counter affidavit is also filed by the 2nd respondent
inter alia contending that one of the accused in the case is a
Lawyer practicing before District Court Center, Palakkad and
that the murder was brutal and gruesome and since an
application was submitted by the widow of the deceased who is a
hapless woman, the Government decided to appoint the 4th
W.P. (C) NO. 26073 OF 2012
4
respondent being a reputed Lawyer as the Special Public
Prosecutor. According to the 2nd respondent the special facts and
circumstances involved in the case were not considered earlier
in the right perspective while rejecting the initial request made
by the wife of the deceased.

6. Heard the learned Senior Counsel appearing for the
petitioner and additional 5th respondent and the learned
Government Pleader.

7. The learned Senior Counsel Sri. P. Vijaya Bhanu
contended that while appointing a Special Public Prosecutor
under Section 24(8) of the Code special care and caution should
be taken and on a proper satisfaction of the Government. The
Government should consider whether there will be any travesty
of justice if the case is permitted to be handled by the Public
Prosecutor who is appointed by virtue of the provisions under
the statute. The counsel relied upon the following judgments to
support his arguments :-

8. The learned Senior Counsel Sri. Renjith Thampan
appearing for the 5th respondent while contending that the
authority of the government in appointing Special Public
Prosecutors cannot be questioned by the accused, and
highlighting the limited scope of judicial review, relied upon the
following judgments:-

10. On a factual consideration of the issue, the question
to be considered is whether any interference is called for with
respect to the decision taken by the Government as Ext. P5 and
P5(a).

11. It is not in dispute that Section 24(8) of the Code gives
absolute power on the Government to appoint Special Public
Prosecutor for the purposes of any case or class of cases. It is to
regulate such appointments, it seems that Circulars had been
issued by the Government in terms of Ext. P6. But the fact
remains that in Ext.P6 it is stated that the appointment of
Special Public Prosecutor will be permitted only in very
exceptional circumstances, that too cases which are highly
sensational or have extensive public interest. But despite the
Circular, the power of the Government under Section 24(8) of
the Code cannot be limited. The Circular is issued only for
creating a self discipline to the Government and cannot be
enforced as a right by a person to insist that the Government
should act only in accordance with the procedure prescribed
W.P. (C) NO. 26073 OF 2012
7
under the circular.

12. Now coming to the decisions on the point the primary
decision relied upon in Mukul Dalal's case (supra) wherein the
Supreme Court was considering the question regarding the vires
of Rule 22 of Chapter III of Maharashtra Law Officers
(Appointment, Conditions of Service and Remuneration) Rules,
1984. While construing the provisions of Section 24(8) of the
Code the Supreme Court held in paragraph 8 and 9 as under:-

8. The pattern that prevails in most of the States is that there is
a Remembrancer of Legal Affairs who inter alia looks after
the cases instituted by the State. At the district level such
interest of the State is looked after by the District
Magistrate. There may be instances where a case instituted
on a private complaint is really a public cause. In such a case
the prosecution though initiated by a private individual is
really one which should be taken over by the State. If the
complainant thereof approaches the State for assistance in a
case of that type by appointing a Special Public Prosecutor
or an Assistant Public Prosecutor to support the prosecution
it would be for the Legal Remembrancer or the District
Magistrate to favourably consider such a request and it
would ordinarily be expected that government would appoint
a Special Public Prosecutor to take charge of the
prosecution. There may also be cases of private complainants
where for various other reasons it would be appropriate for
the State to support the prosecution by appointing a Public
Prosecutor or a Special Public Prosecutor to look after the
case. Instances of this type would be cases where the victims
W.P. (C) NO. 26073 OF 2012
8
are of economically backward classes who are not in a
position to vindicate their rights through court without the
assistance of the State. Here again the Public Prosecutor's
services may be placed at the disposal of the complainant. It
is a well known position in Criminal Jurisprudence that the
State is the prosecutor and that is why the primary position
is assigned to the Public Prosecutor and where the Public
Prosecutor appears, the request of the complainant or the
victim to be represented by any other counsel is subject to
permission of the court.

9. Two questions have now to be dealt with - whether as a rule
whenever there is a request made by a private complainant
for the appointment of a Special Public Prosecutor, should
the same be accepted and whether such Special Public
Prosecutor should be paid by the private party availing his
services. In most of the States, as we have already observed,
the Remembrancer of Legal Affairs looks after the State
litigations. He is a responsible officer and normally with
judicial experience. When an application for the services of a
Special Public Prosecutor or an Assistant Public Prosecutor
is made in a given case the power would be vested in him to
examine the facts and take decision as to whether the case
merits the appointment of a Special Public Prosecutor or an
Assistant Public Prosecutor. It would not be appropriate to
accept the position that whenever an application is made it
should be allowed and a Special Public Prosecutor should be
appointed; this would be contrary to the spirit of the scheme
of the Code. There may be cases where a power complainant
may have begun a proceeding to victimize his opponent. If in
such a case the State concedes to the request for
appointment of a Special Public Prosecutor there will be
travesty of justice. Without screening on the basis of
guidelines prescribed or to be prescribed, the services of a
W.P. (C) NO. 26073 OF 2012
9
Special Public Prosecutor should not be made available to a
private complainant. The primacy given to the Public
Prosecutor under the scheme of the Code has a social
purpose and the same would be lost if the procedure adopted
by Rule 22 of Maharashtra Rules referred to above is
accepted or what the High Court has indicated is adopted.
We are inclined to observe that the request for appointment
of a Special Public Prosecutor should be properly examined
by the Remembrancer of Legal Affairs and only when he is
satisfied that the case deserves the support of a Public
Prosecutor or a Special Public Prosecutor that such a person
should be appointed to be in charge of the case.
In fact the Supreme Court also referred to the judgment of this
Court in P.G. Narayanankutty v. State of Kerala [(1982) 2
CriLJ 2085(Kerala High Court)]. Apparently this was not a
case relating to appointment of the Special Public Prosecutor for
a case involved in a murder whereas this was a case relating to
forgery and question was whether the Rules can be framed for
permitting a private complainant to pay the remuneration to the
Prosecutor.

13. In Abdul Khader's case (supra) the challenge was in
respect of the proceedings of the Government cancelling the
appointment of a Special Public Prosecutor. In that case a
learned Single Judge of this Court had occasion to consider the
obligation of the State under Section 24(3) of the Code to
W.P. (C) NO. 26073 OF 2012
10
appoint Public Prosecutors in every District and held in
Paragraph 7 that in regard to appointment of Special Public
Prosecutor under Section 24(8) of the Code, it does not lay down
any specific terms and conditions for appointment of a Public
Prosecutor. But the scheme of Section 24 would unmistakably
reveal that a Special Public Prosecutor can be appointed only in
special circumstances. In Paragraph 10 it is held as under:-

10. It is in the aforesaid background that the power conferred on
the Government to appoint a special public prosecutor need
be understood. S. 24(8) of the Code reads thus:

"The Central Government or the State Government
may, appoint for the purposes of any case or class of
cases a person who has been in practice as an
advocate for not less ten years as a Special Public
Prosecutor"

The philosophy involved which can be discerned from the
sub-section it two fold. First is that there should be special
circumstances for making such appointment. Second is that,
when a situation arises for appointing a special public
prosecutor, Government shall consider a more experienced
advocate for this assignment. Though circumstances may
differ in different situations, the very idea behind conferment
of the power is to meet special situations. In other words, a
special public prosecutor is not to be appointed in ordinary
circumstances. Bhat, J. (as His Lordship then was) has
pointed out in Narayanankutty v. State of Kerala (1982 KLT

605) that "Special Public Prosecutor could be appointed only
when public interest demands it and not to vindicate the
W.P. (C) NO. 26073 OF 2012
11
grievances or a private person, such as close relation of the
deceased."

14. Devineni Seshagiri Rao's case (supra) is relied upon to
contend that it is purely within the discretion and prerogative of
the State to appoint the Special Public Prosecutor in a case. That
was a case in which the Government appointed a person as a
Special Public Prosecutor who is alleged to have appeared on
behalf of the deceased in several cases. The contention raised
was the acquaintance with and the proximity to the deceased
and his family was the reason for appointing such a person as
Special Public Prosecutor which according to the accused would
not amount to an independent functioning as a Special Public
Prosecutor. After referring to various authorities on the point the
learned Single Judge of the Andhra Pradesh High Court observed
that the State Government is required to apply its mind and
arrive at a conclusion that the concerned case has special
significance and that regular Public Prosecutor or Additional
Public Prosecutor attached to the Court cannot effectively
prosecute the matter. It is also stated that the Government does
not owe an obligation to record reason in support of the said
conclusion, but such satisfaction has to exist. A reference is
W.P. (C) NO. 26073 OF 2012
12
made to the judgments in Mukul Dalal's case (supra) and
D. Brahmanandam's case [1986(1) Andh LT 141 Andhra
Pradesh High Court] and having found that office of the Public
Prosecutor is unique in its nature and status, it cannot be
permitted to be slipped into the hands of private individuals. The
appointment as Special Public Prosecutor of that person was set
aside.

2. The scope for judicial review has been examined by this
Court in several cases. It has been consistently held that the
power of judicial review is not intended to assume a
supervisory role or don the robes of omnipresent. The power
is not intended either to review governance under the rule of
law nor do the courts step into the areas exclusively reserved
by the supreme lex to other organs of the State. A mere
wrong decision, without anything more, in most of the cases
will not be sufficient to attract the power of judicial review.
The supervisory jurisdiction conferred upon a court is limited
to see that the authority concerned functions within its limits
of its authority and that its decisions do not occasion
miscarriage of justice.

W.P. (C) NO. 26073 OF 2012
13

3. The courts cannot be called upon to undertake governmental
duties and functions. Courts should not ordinarily interfere
with a policy decision of the State. While exercising power of
judicial review the court is more concerned with the decision
making process than the merit of the decision itself.

4. In the instant case, acting on a petition filed by close
relatives of a victim decisions have been taken at various
levels. The High Court was not justified to pick up stray
sentences from the records to conclude that there was non-
application of mind. In any event, the appointment of a
Special Public Prosecutor to conduct a proceeding does not
in any way cause prejudice to the accused. In that sense the
writ petition before the High Court was wholly misconceived.
The impugned judgment of the High Court is set aside. Since
the trial appears to have been held up, we direct that the trial
court shall make all possible endeavors to see that the trial is
completed expeditiously and in any event not later than by
the end of October, 2009. The appeal is accordingly, allowed.

16. Annop's case (supra) is relied upon to contend for the
position that scope of judicial review in the matter relating to
appointment of Special Public Prosecutor is very limited. Para 6
of the said judgment reads as under:-

6. S. 24(8) of the Code has come up for consideration in
number of cases and law relating to appointment of Special
Public Prosecutor is now well settled. It is, therefore, not
necessary to burden this order with various citations, except
to point out that appointment of respondent No. 2 is made by
the State Government in exercise of statutory powers
conferred on it. It is the discretionary power vested in the
Government. The State Government is the largest litigant in
W.P. (C) NO. 26073 OF 2012
14
the country. The Government, like any other private litigant,
can choose and appoint/authorize any eligible advocate to
appear on their behalf in any Court of Law. It is not open to
petitioner to suggest to the Government that it should not
appoint respondent No. 2 as the counsel. An accused cannot
claim as matter of right that the prosecution be conducted by
a particular prosecutor and not by any other. Nor it is open
for an accused to ask this Court to test the exercise of
discretion under S. 24(8) on the touchstone of 'Judicial
Review' as an appellate authority or Court. This is
permissible only when such exercise and the resultant
decision is palpably arbitrary and against the public interest.
The scope of interference is very limited as pointed out in the
recent decision reported in 2004(4) SCC 714 : AIR 2004 SC
3800 State of U.P. v. Johri Mal.

17. In Nemi Chand's case (supra) the principle of law laid
down is that merely for the reason that the advocate appointed
as the Special Public Prosecutor had appeared on behalf of the
complainant would not make the appointment bad in law.

18. Judgment in Azeez's case (supra) is referred to
contend for the position that there is no bar in a person being
appointed as Special Public Prosecutor, who had already been
appointed as next of kin before Motor Accidents Claims Tribunal.

19. State of A.P. and Another v. Margadarsi Financiers
and Others of Andhra Pradesh High Court [2009 CriLJ 2705
(Andhra Pradesh)] is a judgment of the Division Bench wherein
W.P. (C) NO. 26073 OF 2012
15
also the Division Bench considered the scope and effect of
appointment of Public Prosecutor under Section 24(8) of the
Code. In Para 16 of the said judgment the Division Bench held as
under:-

16. The expression used "Special" adjacent to "Public
Prosecutor" and the reasons required for such appointment
as mentioned therein viz., for the purpose of any case or
class of cases, necessarily shows it stands apart. In a given
situation and facts and circumstances, as the exigencies may
arise, the concerned Government may appoint an individual
person as a Special Public Prosecutor at their choice and
discretion. This appointment, naturally will be in addition to
the regular Public Prosecutors functioning in the respective
Courts, and for the reasons as the Government may feel
necessary to appoint such Special Public Prosecutors. It is
not necessary to dwell into or lay down any specific reasons
for such appointment, since they may vary from case to case
and facts to facts. Therefore, where it felt necessary, the
option is left to the Government for appointing a Special
Public Officer in respect of a special case or class of cases.
Thus, this provision independently stands on its own and
cannot and does not have any similarity with appointments to
the offices as provided for in the preceding sub clause.
Apparently, the consultation and panel as prescribed for the
purpose of District is not provided for. It shows that such
procedure is not necessary for making an appointment to the
post of Special Public Prosecutor. The discretion apparently
is a total and absolute one with a complete option on the part
of the State Government to virtually pick and choose.

W.P. (C) NO. 26073 OF 2012
16

20. Having regard to the various judgments relied upon
by either sides the first question that is to be considered is
regarding the locus standi of the petitioner. Petitioner is an
accused in a criminal case and he is no doubt worried about the
nature of prosecution. As held by the Supreme Court and the
various High Courts in judgments referred above, the Prosecutor
is a person who stands in a different capacity. He is not a person
who has to act with a vengeance, he is a person who should
prosecute the case without any blemish and to bring home the
necessary evidence available in the matter relating to
investigation of the said crime. If Special Public Prosecutor does
not have an independent thought process, it may even effect the
defence of the accused. It is to avoid such circumstances that the
Courts have evolved the principle that the Special Public
Prosecutor should have an independent thinking. Therefore if
such an approach is not seen it is open for the accused to
challenge the appointment of the Special Public Prosecutor.

21. In the present case the main contention urged is that
originally the appointment of Special Public Prosecutor was
rejected as there was no special circumstances for the case and
W.P. (C) NO. 26073 OF 2012
17
that there were competent prosecutors in the District of
Palakkad. The Government seems to have had a rethinking which
resulted in Ext.P5. Though a reference is made in Ext. P5
regarding a subsequent representation of the additional 5th
respondent, the said documents are not available on file. But that
does not mean that the Government have not reconsidered the
matter especially in view of the existence of Ext. P5

22. Under what circumstances, the Government had come
to a conclusion that it is a special case of public interest is not
borne out by Ext. P5 or P5(a). But as held in the judgments cited
above there is no necessity for the Government to give any such
particulars as long as they have the right to make such
appointments.

23. Having regard to the contention urged by the
petitioner that there is no special reason to appoint a Special
Public Prosecutor, a reference to the counter affidavit filed by
the additional 5th respondent would throw some light. In fact it
was at her instance that a Special Public Prosecutor is
appointed. The first accused in the case is an Advocate
practicing at Palakkad, so there is always an apprehension in the
W.P. (C) NO. 26073 OF 2012
18
mind of the relatives of the deceased as to whether the case will
be properly handled. The Public Prosecutor attached to the
District Court is no doubt competent to conduct the case
impartially and properly. But when an apprehension is raised by
the wife of the victim that the first accused was closely
connected with the Government Pleader attached to the said
Office and another circumstance is pointed out that the
petitioner was not even imprisoned for a day that too in a murder
case. This normally cannot be achieved by an accused in an
ordinary murder case. Therefore the apprehension expressed by
the wife of the deceased cannot be ruled out.

24. That apart the Government had considered the case
as a special case on a reconsideration of the matter and they
intended to help hapless woman. It is to avoid any doubt
regarding the conduct of the prosecution probably the
Government thought that it is a fit case in which a Special Public
Prosecutor could be appointed.

25. As held in the judgments cited above, appointing a
Special Public Prosecutor is a matter coming within the province
of a policy of the Government and the power is there as evident
W.P. (C) NO. 26073 OF 2012
19
from Section 24(8) of the Code. The exercise of that power
cannot be said to violate Article 14 of the Constitution of India.
As contended by the learned Senior Counsel Sri. Renjith
Thampan the scope of judicial review in such matters is very
limited. An order passed by the Government by way of Ext. P5
and P5(a) cannot be set aside merely for the reason that earlier a
different opinion was expressed.

In these circumstances, I do not think that any interference
is required with reference to Ext. P5 and P5(a) and hence this
writ petition is dismissed.